Who owns an invention? Generally, the inventor does not apply for the patent. In many cases, the applicant is the inventor”s employer. But who is entitled to the revenue from the patent? The rules differ depending on the country. New legislation is also in the offing in China.
Often, an invention is created within employment relationship, which means the employer acquires the right to the invention. In the US, this is normally a clause in the employment contract. Germany and Japan have laws on the ownership of inventions by employees. The employer can apply for a patent or utility model or release it to the inventor. German law also lays down strict rules regarding the inventor’s remuneration.
Notification not compulsory
Until now, Chinese legislation has dealt with the subject in only broad terms. Under Chinese law, the employee is not required to notify the employer of his invention. The country now plans to introduce more systematic rules on employee inventions and, with that aim in mind, on 30 April 2014 a proposed amendment was presented.
The proposal distinguishes four categories: inventions 1) which are made on the company”s instructions, 2) which are created outside the employee”s job description, 3) which are made within one year of retirement, dismissal or termination of the employment contract, and 4) which are made using the company”s resources, to the extent that there are no agreements in place concerning the return of those resources to the company. Another significant change is that the invention must be notified to the company and the inventors are entitled to payment from the employer. The Chinese IP agencies have auditing and inspection powers in this matter.
Questions about the changes to the law?
Our specialists with the V.O. China Desk will be pleased to help: firstname.lastname@example.org.